With little fanfare, religious freedom wins big at Supreme Court
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

For all nine justices of the current U.S. Supreme Court to agree on anything is rare enough. But when the topic is religion, a unanimous decision borders on the miraculous.

Well, prepare to say “amen.” On May 31, the Court ruled 9-0 that the Religious Land Use and Institutionalized Persons Act (RLUIPA) does not violate the establishment clause of the First Amendment.

Although the case, Cutter v. Wilkinson, involves religious freedom claims made by prison inmates in Ohio, the decision by the Supreme Court addresses a much broader question: Do legislatures unconstitutionally favor religion when they pass laws like RLUIPA that seek to accommodate religious practice? The answer to that question affects thousands of laws protecting religion and millions of Americans of every faith.

When RLUIPA was enacted in 2000, Congress wanted to accommodate religion by preventing prison officials from imposing a substantial burden on the religious practices of inmates — unless there is a compelling reason to do so and no less-restrictive way to protect the prison’s interests. Last year, the 6th U.S. Circuit Court of Appeals struck down RLUIPA as an unconstitutional violation of the establishment clause, ruling that the law unduly favors religion.

The justices of the Supreme Court unanimously disagreed. Writing for the Court, Justice Ruth Bader Ginsburg affirmed that the establishment clause “commands a separation of church and state.” But separation doesn’t mean ignoring religion. “Our decisions recognize” she wrote, “that ‘there is room for play in the joints’ between the clauses, some space for legislative action neither compelled by the Free Exercise Clause nor prohibited by the Establishment Clause.”

The Court’s “play in the joints” means, for example, that the free-exercise clause doesn’t require the military to allow members of the armed forces to wear religious head coverings such as yarmulkes (as the Supreme Court ruled in 1986 in Goldman v. Weinberger). But the establishment clause doesn’t prevent Congress from passing legislation that permits military personnel to wear religious headgear while in uniform (as Congress did in 1987).

In fact, many state and federal laws accommodate religion — and religion only. Ohio, the very state that challenged RLUIPA, has such laws, including one that exempts people with religious objections from certain vaccination requirements.

The previous high-water mark for legislative accommodation of religion was another unanimous decision by the Supreme Court in Corp. of Presiding Bishop v. Amos (1987). In that case, the Court upheld a section of the Civil Rights Act of 1964 (as amended in 1972) exempting religious organizations from the prohibition on religious discrimination in employment. This provision protects the freedom of religious organizations to hire members of their own faith.

Although the difference between permissible accommodation and establishment of religion is sometimes murky in Court decisions, the justices have drawn some general lines. It’s clear from past cases that legislative accommodations may not promote religion or require government funding of religion. And all religions must be treated equally. But if the aim is to relieve religious people or organizations from substantial burdens imposed by government laws or regulations, then the accommodation is probably constitutional.

The Cutter decision doesn’t end the debate over RLUIPA’s constitutionality. The Court was silent about the whether or not Congress has the power to pass such legislation under the spending- and commerce-clause provisions of the Constitution. And the “land use” section of RLUIPA was not at issue in this case. Challenges on those fronts are already before lower courts.

But Cutter does signal more room for “play in the joints” between the free-exercise and establishment clauses of the First Amendment. And the likely result will be more laws — perhaps broader laws — that protect the free exercise of religion from impositions of state power.

The Supreme Court’s decision in Cutter may not have generated much news media interest. But if you care about religious freedom, it’s big news.